Benchmarking is not the same as analyzing a process. 

In Law departments rarely benchmark processes, law department consultant Rees Morrison explains that general counsel benchmark ratios but “very few law departments formally benchmark key processes, such as how to manage large numbers of contracts.” In my experience, you can say the same for outside counsel. This explains why it’s hard for me to find topics for my legal best practices blog category.

Paying more attention to process might accelerate the halting change in how lawyers practice and help address risk aversion. Take a look at one process: e-discovery nee litigation support. A chronology of developments – poetic license taken – illustrates what happens when lawyers don’t confront process:

  • We can’ t use OCR (optical character recognition) because it’s not 100% accurate. Never mind that the alternative, objective coding, is at best about 98% accurate. [1992]
  • We can’t use Boolean search of full text instead of objective coding because we will miss key documents. Never mind that there is good evidence that Boolean search, with all it limitations, typically finds more relevant documents than bibliographic coding. [1993-94]
  • We shouldn’t ask for opposing party e-mail because then they might ask for ours. Never mind that it was obvious a decade plus ago that in many organizations, e-mail was critical. [1996]
  • We can’t use a hosted repository, it might not be secure. Never mind that few firms had performed security audits on their own systems. [2000]
  • We have to produce documents in fixed file formats such as TIFF or PDF with Bates numbers. Never mind that spreadsheets have no natural pagination and that many PowerPoint decks have crucial animation sequences. [2003]
  • We can’t use software to screen for documents, it might not find all of them. Never mind that the alternative, human review, has errors and there is little data to compare the relative error rates. [Now]
  • We can’t use offshore lawyers, they might make mistakes. Never mind that the alternative, armies of domestic lawyers, make mistakes. [Now]

For a profession that loves to dissect problems into issues, it’s surprising lawyers are typically unwilling or unable to dissect and examine processes. This reduces their effectiveness and the only reason they get away with it is that the clients don’t know any better.